K and M Prodanovski Pty Ltd v Wollongong City Council
[2013] NSWCA 202
•04 July 2013
Court of Appeal
New South Wales
Case Title: K and M Prodanovski Pty Ltd v Wollongong City Council Medium Neutral Citation: [2013] NSWCA 202 Hearing Date(s): 18 June 2013 Decision Date: 04 July 2013 Before: Meagher JA at [1];
Leeming JA at [37];
Sackville AJA at [38]Decision: (1) Appeal dismissed.
(2) Appellant pay the respondent's costs of the appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: ENVIRONMENT AND PLANNING - whether development consent prevented from lapsing by application of s 95(4) of Environmental Planning and Assessment Act 1979 - geotechnical work was to be carried out once demolition completed - not work "relating to" development because demolition work not undertaken as required by consent - consent lapsed Legislation Cited: Environmental Planning and Assessment Act 1979, s 95 Cases Cited: Coalcliff Community Association Inc v Minister for Urban Affairs and Planning [1999] NSWCA 317; 106 LGERA 243
Detala Pty Ltd v Byron Shire Council [2002] NSWCA 404; 133 LGERA 1
FG Whitely & Sons v Secretary of State for Wales (1992) 64 P&CR 296
Green v Kogarah Municipal Council [2001] NSWCA 123; 115 LGERA 231
House of Peace v Bankstown City Council [2000] NSWCA 44; 48 NSWLR 498
Hunter Development Brokerage Pty Ltd v Cessnock City Council [2005] NSWCA 169; 63 NSWLR 124
Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132
Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390
Re Dingjan; Ex parte Wagner [1995] HCA 16; 183 CLR 323
Tooheys Ltd v Commissioner of Stamp Duties [1961] HCA 35; 105 CLR 602
Wollongong City Council v K and M Prodanovski Pty Ltd [2012] NSWLEC 107Category: Principal judgment Parties: K and M Prodanovski Pty Ltd (Appellant)
Wollongong City Council (Respondent)Representation - Counsel: Counsel:
T F Robertson SC (Appellant)
D T Miller SC, T To (Respondent)- Solicitors: Solicitors:
RMB Lawyers, Kiama (Appellant)
Sparke Helmore Lawyers (Respondent)File Number(s): 2012/166124 Decision Under Appeal - Court / Tribunal: Land and Environment Court - Before: Sheahan J - Date of Decision: 11 May 2012 - Citation: Wollongong City Council v K and M Prodanovski Pty Limited[2012] NSWLEC 107 - Court File Number(s): 2010/40886
JUDGMENT
MEAGHER JA: The issue in this appeal is whether the consent granted by the respondent council for redevelopment of certain land at Keiraville owned by the appellant lapsed on 28 June 2008 pursuant to s 95 of the Environmental Planning and Assessment Act 1979 (the EPA Act). The resolution of that issue before the Land and Environment Court depended upon whether the undertaking by the appellant of demolition and geotechnical work was sufficient to prevent that lapsing. The primary judge (Sheahan J) held that it was not: Wollongong City Council v K and M Prodanovski Pty Ltd [2012] NSWLEC 107. In this Court the appellant argues that the primary judge erred in not holding that the geotechnical work alone engaged the operation of s 95(4) of that Act.
Background
Section 95(4) provides:
"Development consent for:
(a) the erection of a building, or
(b) the subdivision of land, or
(c) the carrying out of a work,does not lapse if building, engineering or construction work relating to the building, subdivision or work is physically commenced on the land to which the consent applies before the date on which the consent would otherwise lapse under this section."
The land to be redeveloped consisted of two adjoining lots, on which stood a service station and outbuildings (Lot 1) and a dwelling (Lot 3). The Development Consent granted on 28 June 2005 authorised the following development:
"Demolition of existing dwelling, service station and outbuildings, construction of mixed residential unit development comprising 24 residential units, 1 x retail, 2 x professional suites with basement parking for 51 cars."
The original date on which that consent would lapse, 28 June 2007, was later extended to 28 June 2008.
Before the consent was granted, a geotechnical investigation of the land was undertaken concurrently with an environmental assessment. Those assessments were conducted by Douglas Partners and were the subject of two reports prepared in June 2004. The report relating to the geotechnical assessment recommended that additional investigations be undertaken on Lot 3 and in the northern part of Lot 1, following demolition and removal of trees from those areas. The consent, when issued, required that the development be carried out in compliance with "the plans and documentation listed" except where amended by other conditions of the consent. That documentation included the Douglas Partners June 2004 geotechnical report.
Conditions 6, 13, 55a and 59 of the Development Consent relevantly provided:
"6. Geotechnical
The applicant shall undertake the following:
1. A supplementary geotechnical investigation is required to better assess groundwater conditions.
2. Drainage designs are to be revised to include the findings of the investigation of groundwater conditions.
3. A supplementary geotechnical investigation of soil and rock conditions is required of Lot 1 and the rear of Lot 3 once demolition of structures is complete.
4. The preliminary excavation plan is to be reviewed to incorporate the findings of the supplementary soil and rock and groundwater investigations.
...""13. Final Geotechnical Report
The submission of a final geotechnical report, prepared by an approved geotechnical consultant, to the Principal Certifying Authority for approval, is required prior to the issue of the Construction Certificate. The final report must include the results of subsurface investigations involving either test pits to bedrock preferably the drilling of core boreholes to 1 metre below the proposed final excavation level. This report shall include, but is not necessarily limited to, the following:
...
13.2 Recommended geotechnical testing requirements;
...
13.11 Nature and condition of the material to be excavated;
13.12 Existence and nature of groundwater seepages or intrusions;
...""55a. Appointment of Principal Certifying Authority
Prior to commencement of work, the person having the benefit of the Development Consent and a Construction Certificate must:
55a.1 Appoint a Principal Certifying Authority (PCA) and notify Council in writing of the appointment ..."
"59. Demolition Works
The demolition of the existing service station and dwelling shall be carried out in accordance with Australian Standard AS2601 (2001) ... and the requirements of the NSW WorkCover Authority."
(emphasis added)
Between 21 April and 14 May 2008, demolition of the above ground structures on the land was carried out and completed. The primary judge held, and it is not in issue on this appeal, that the demolition work was not carried out in accordance with Condition 59. For that reason it was unlawful because it involved the carrying out of a development otherwise than in accordance with the consent: s 76A(1) of the EPA Act. Between 19 and 24 June 2008, further geotechnical investigation work was undertaken on the land by Douglas Partners. That work involved the drilling of three additional boreholes and was the subject of a further report dated 31 July 2008. The June investigation was undertaken pursuant to an earlier proposal of Douglas Partners dated 14 March 2008 which described the work to be done as "Supplementary geotechnical investigation (Condition 6 Clauses 1 and 3, and Condition 13)".
The argument and issues on appeal
The respondent argued at first instance that the appellant was required to appoint a Principal Certifying Authority (PCA) before commencing any work. The conditions of the Development Consent which it relied upon as having that consequence included Conditions 20 (Site Management Plan), 21 (Asbestos Management Report), 22 (Site Contamination), 55a and 59. No PCA was appointed by the time the relevant works were undertaken. The respondent also argued that the demolition work was not carried out in accordance with Condition 59 and for that reason was not authorised. Finally, it argued that the geotechnical work was not authorised because it was required to be undertaken after demolition had been completed in accordance with the consent was complete. That did not occur.
Although his reasons for doing so are less than expansive, the primary judge appears to have accepted each of these arguments: at [142], [143], [145]. His Honour held that the demolition and geotechnical works were undertaken in breach of the terms of the consent. For that reason they did not "relate to" the building or work which was the subject of the Development Consent and that consent was not prevented from lapsing by reason of the works.
The appellant challenges these conclusions, but only in relation to the geotechnical work. It accepts that the demolition was not undertaken in accordance with Condition 59 and that it was unlawful. It does not accept that it was required to appoint a PCA before the commencement of the geotechnical or other work. The appellant also contends that at least the part of the geotechnical investigation work relating to groundwater conditions was in accordance with the consent, and not prohibited or unlawful. Considering that work as a whole, it was not prohibited by Condition 6.3. That condition did not require that the further geotechnical investigations only occur after the demolition of structures was complete. Furthermore, the reference to demolition was to the fact of demolition and not to its having occurred in accordance with the consent. Alternatively, the reference to demolition was to be understood as being to the removal of the trees which had prevented access to Lot 3 and the northern part of Lot 1. The removal of those trees was not demolition work to which Condition 59 applied.
The appellant also submits that the geotechnical work in Condition 6.1 was not required to be undertaken after demolition of any structures and that, as undertaken, it was sufficient to constitute physical commencement. Finally, the appellant argues that the geotechnical work undertaken was necessary for the completion of the development and carried out in accordance with the provisions of the consent which related to it. The geotechnical work was not rendered "unlawful" because the development work which preceded it was unlawful.
The respondent contends that the primary judge's conclusion was correct. Condition 6.3 required that the geotechnical work be undertaken once demolition work, undertaken in accordance with the consent, had been completed. In addition, Condition 55a and other provisions of the consent required that a PCA be appointed before any work, and not merely building work, was carried out. No such appointment was made. That provided an additional reason as to why the demolition work was not undertaken in accordance with the consent. It also provided a separate reason for concluding that the geotechnical work was carried out contrary to the terms of the consent and one which did not depend upon the demolition work having been unlawful.
Disposition of the appeal
The respondent's arguments as to why the geotechnical work did not prevent the consent from lapsing point to respects in which it is said that work was not in accordance with the consent and, for that reason, prohibited and unlawful. They rely upon the proposition that work which is prohibited, either by the terms of the consent or because it is or involves carrying out a development otherwise than in accordance with the consent, cannot "relate to" the development to which the consent applies. That principle was accepted and applied by Handley JA (with whom Mahoney JA and Rogers AJA agreed) in Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132; and by subsequent decisions of this Court in Coalcliff Community Association Inc v Minister for Urban Affairs and Planning [1999] NSWCA 317; 106 LGERA 243; Green v Kogarah Municipal Council [2001] NSWCA 123; 115 LGERA 231; Detala Pty Ltd v Byron Shire Council [2002] NSWCA 404; 133 LGERA 1; and Hunter Development Brokerage Pty Ltd v Cessnock City Council [2005] NSWCA 169; 63 NSWLR 124.
Before considering whether that principle applies in this case, it is useful to focus first upon the language of s 95(4) because, ultimately, it is that language which must be applied. That subsection describes a circumstance in which a development consent is taken not to lapse. That circumstance is that "building, engineering or construction work relating to the building, subdivision or work" is physically commenced on the land. Building work is defined as "any physical activity involved in the erection of a building". Engineering and construction work are not defined. It was accepted by the primary judge that the geotechnical work was within the description "engineering work". That accords with the conclusion of this Court in Hunter Development Brokerage Pty Ltd at [85], [86], [116] per Tobias JA (Santow JA and Stein AJA agreeing).
The "building, subdivision or work" is the product of the act or process of carrying out the development which, as Giles JA (Mason P and Ipp AJA agreeing) observed in Green v Kogarah Municipal Council at [70], is to be distinguished from the act or process which results in the product. The relationship described by the words "relating to" is between work, which is physically carried out on the land, and the development or undertaking which has been consented to. The nature and extent of that relationship takes its content from its statutory context and purpose: see, as examples of the application of this principle, Tooheys Ltd v Commissioner of Stamp Duties [1961] HCA 35; 105 CLR 602 at 617-619 (per Kitto J), 620-622 (per Taylor J); Re Dingjan; Ex parte Wagner [1995] HCA 16; 183 CLR 323 at 334-335 (per Mason CJ); and Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390 at [24] (per French CJ).
In s 95(4) "relating to" is used to distinguish between work which is to be taken to constitute the commencement of a development, so as to prevent the relevant consent from otherwise lapsing, and work which is not to be so taken. The development is defined and described by the instrument constituting the consent, which ordinarily includes conditions imposed under s 80A of the EPA Act. Those conditions may specify or regulate the manner and sequence of performance of the development. If work is undertaken as part of a development, such as the erection of a building or the subdivision of land, but is not undertaken in accordance with the consent, it will not "relate to" the development to which consent has been given. That is so notwithstanding that the work would have to be performed to erect the building or complete the subdivision.
This construction of the words "relating to" in s 95(4) is adopted in the cases referred to above. In Iron Gates Developments Pty Ltd, which concerned the application of the lapsing provisions in an earlier version of the EPA Act, the developer had commenced work on stage 1 of an approved subdivision contrary to a condition requiring that an external access road be constructed before that work commence. The Court held that the work was not work "relating to" the development which had been approved because the condition prohibited that work from being undertaken before the access road was constructed. It followed that the work was unlawful because the breach of a condition was, by s 122(b) of the Act, a breach of the Act itself. That was the position notwithstanding that the work which had been commenced would have had to be undertaken at some stage of the development.
The principle applied in Iron Gates Developments Pty Ltd was drawn from the English cases cited by Handley JA and, in particular, a passage from the judgment of Woolf LJ in FG Whitely & Sons v Secretary of State for Wales (1992) 64 P&CR 296 (at 302). That passage is cited (with an additional first sentence) by Giles JA in Green v Kogarah Municipal Council at [65]:
"As I understand the effect of the authorities to which I am about to refer, it is only necessary to ask the single question; are the operations (in other situations the question would refer to the development) permitted by the planning permission read together with its conditions? The permission is controlled by and subject to the conditions. If the operations contravene the conditions they cannot be properly described as commencing the development authorised by the permission. ... The mining operations to which the planning permission relates are those authorised by the planning permission, not those which are unauthorised, because they contravene conditions contained in the planning permission."
The reasoning in Iron Gates Developments Pty Ltd was that the work did not "relate to" the development consent because it was prohibited by a specific condition of the consent. However, as Giles JA noted in Green v Kogarah Municipal Council at [60], the principle also applies to the broader prohibition against the carrying out of a development otherwise than in accordance with the consent and relevant planning instrument: see s 76A of the EPA Act.
In Green v Kogarah Municipal Council the consent to a dual occupancy development imposed a condition that certain tree protection steps had to be taken before the commencement of any works on the site. Engineering work was commenced and relied upon as preventing the lapse of the consent. That work was commenced in breach of that condition. It was held not to have been undertaken in accordance with the development consent and therefore did not relate to the development which was the subject of that consent: at [67], [71].
The issue in Hunter Development Brokerage was whether survey and geotechnical investigation work necessarily undertaken as part of a subdivision development prevented a consent from lapsing. As Tobias JA observed, at [109], a development consent may expressly or by implication authorise work which is a necessary step in the process required for or involved in the subdivision, notwithstanding that the work may not, if conducted separately and unrelated to a development, constitute a development for which consent is required. Work, such as preliminary survey and geotechnical work, will satisfy the relationship required by the expression "relating to" if it "is a necessary step in or part of, the process required for, or involved in, the erection of the building, the subdivision of the land or the carrying out of the work (as the case may be) which is authorised by the consent": at [104] per Tobias JA.
Returning to the issues in the appeal, the respondent argues that there are two respects in which the geotechnical work was not carried out in accordance with the consent, and, for that reason, was unlawful. The first is that Condition 6.3 required that the supplementary geotechnical work, whether related to soil and rock or groundwater conditions, be carried out after the completion of demolition work undertaken in accordance with the consent. Whether that was the effect of this condition depends upon its proper construction. It is accepted that the demolition work was carried out in breach of Condition 59. The second respect in which it is said that the undertaking of the geotechnical work was not authorised arises because the appellant had not appointed a PCA at the time that work was undertaken. It is said that Condition 55a required that a PCA be appointed before any work was undertaken. Alternatively, it is said that various conditions of the consent (and specifically Conditions 20, 21, 22 and 59 which are set out by the primary judge at [12]) required that a PCA be appointed before the demolition work was undertaken. That rendered the demolition work unlawful and Condition 6.3 prevented the geotechnical work from being carried out in that circumstance. This alternative reliance upon the failure to appoint a PCA does not advance the respondent's argument because it only provides an additional reason for saying that the demolition work was carried out in breach of the consent, a matter which is not in issue.
These arguments raise several questions as to the construction of Condition 6. They are: whether the condition contemplates two separate supplementary geotechnical investigations - one assessing groundwater conditions and the other assessing the soil and rock conditions of Lot 1 and the rear of Lot 3; if so, whether the former is not required to be carried out "once demolition of structures is complete"; whether that requirement refers to the mere fact of demolition and not to a demolition carried out in accordance with the conditions of the consent; and whether, if the condition contemplates separate investigations, the investigations undertaken were nevertheless not authorised because they were undertaken by one process and included the investigation described in Condition 6.3.
The principles governing the construction of the consent are not in issue and were summarised by this Court in House of Peace v Bankstown City Council [2000] NSWCA 44; 48 NSWLR 498 at [23], [37]-[41] per Mason P (Stein and Giles JJA agreeing). The meaning of the language is to be determined objectively having regard to the context in which the consent was issued and taking into account the fact that, unlike a contract between parties, the consent operates in rem and is for the benefit of subsequent owners and occupiers, as well as the applicant. In this case the relevant context is provided by the June 2004 report, which explains the reasons for the requirement of the further geotechnical investigation and the purpose for the imposition of Conditions 6 and 13. The consent specifically stated that the development was to be carried out in compliance with the plans and documents listed, including the June 2004 report.
That report states that the investigation was undertaken to provide information on "subsurface conditions for the design of excavations, retaining walls, building foundations and ground slabs" of the proposed development. Those subsurface conditions included groundwater, as well as soil and rock conditions. In Section 2.1, which contained a description of the proposed site, the report noted:
"At the time of the investigation, existing site development comprised a single storey fibro clad residential dwelling on Lot 3 and a brick and steel service station on Lot 1. Several brick retaining walls ... were located within Lot 1 to enable a near level platform for construction of the service station. A number of semi-mature and mature trees were noted on both lots which prevented access to Lot 3 and the northern part of Lot 1. The southern (service station site) part of Lot 1 was typically concrete or asphalt paved."
The investigation undertaken comprised four test bores, one of which was discontinued at a depth of 1.4 metres. The remaining three bores were continued to depths of between 6 and 9 metres. Each was on Lot 1 and none was in the northern part of that lot. Those bores were drilled using a continuous spiral flight auger in the overburden soils and a diamond core drill in the underlying rock. This resulted in augur drilling to depths of between 0.8 and 4.05 metres. At the conclusion of the drilling and removal of rock core samples, standpipe piezometers were installed in two of the bores to facilitate longer term monitoring of groundwater levels.
The summary of the "subsurface conditions" encountered in the bores included the following observations concerning groundwater conditions:
"No free groundwater was encountered in the bores during augur drilling and the use of water during core drilling precluded groundwater observations thereafter."
"Additional groundwater monitoring should be undertaken on a regular basis to provide information on the groundwater regime at the site, thus enabling further comment to be made on inflow rates and drainage measures."
It is not clear from this report whether it was contemplated that the additional groundwater monitoring referred to was to be undertaken using those existing bores or further bores to be drilled in a subsequent investigation.
The following comment was made in relation to the "proposed development", and no doubt provided the reason for the imposition of Condition 6:
"Due to site restrictions at the time of the investigation, access to Lot 3 and the northern part of Lot 1 was not available. Following demolition and removal of trees from these areas, additional investigation is recommended to confirm the subsurface conditions encountered."
Several matters are apparent from the terms of this report. First, the investigation of groundwater conditions was not limited to the installation of standpipe piezometers once drilling was concluded. It included observations made during augur drilling as to whether there was free groundwater. Secondly, the observation as to the need for additional geotechnical investigations of Lot 3 and the northern part of Lot 1 was to "confirm subsurface conditions encountered". That description included groundwater as well as soil and rock conditions. Finally, the report proposed that this investigation occur following "demolition and removal of trees" from those areas. At the time it was conducted, there were existing structures on Lot 3 and Lot 1. The reference to "demolition" was undoubtedly to the pulling down of those existing structures. In this context it would be a misuse of language to describe the cutting and removing of trees as the "demolition and removal of trees".
The report makes clear that although Condition 6 refers separately to a supplementary geotechnical investigation in cll 6.1 and 6.3, the subject matter of each investigation, and the process by which it would be undertaken, necessarily overlapped. Each would involve the drilling of boreholes. The assessment of groundwater conditions required consideration of soil and rock conditions and an investigation addressed to the latter would also provide information about groundwater conditions. For that reason the reference to a supplementary geotechnical investigation in those clauses is reasonably to be understood as being to one investigation directed to subsurface conditions, and specifically the conditions referred to in those clauses. That is consistent with the terms of the June 2004 report, which contemplated that the additional investigations would address subsurface conditions generally. It is also consistent with the terms of Condition 13, which required the preparation of a final geotechnical report dealing with the "nature and conditions of the material to be excavated" and the "existence and nature of groundwater seepages or intrusions".
Clause 6.3 requires that the geotechnical investigation be undertaken "once demolition of structures is complete". In that expression "once" means "as soon as" or "when". Contrary to the appellant's contentions, it does not authorise the geotechnical investigation to commence at an earlier time and the fact that different language is used here from that in other conditions in the consent, where a temporal order of activities is required, does not provide a sufficient basis for departing from its plain meaning. Furthermore, the "demolition" referred to is the demolition which is a part of the permitted development, and accordingly subject to Condition 59; it does not, as the appellant contends, refer to or describe the removal of the trees on the two lots.
So construed, Condition 6 means that the supplementary geotechnical investigation was required to take place after the completion of demolition works undertaken in accordance with the consent. The geotechnical works were not undertaken after the completion of demolition work in accordance with the consent. They were therefore not permitted and, for that reason, were unlawful. In substance, they were no different from the site works performed in Green v Kogarah Municipal Council and the stage 1 works performed in Iron Gates Developments Pty Ltd. They could not "relate to" the development consent and the primary judge did not err in concluding that the consent had not been prevented from lapsing by reason of those works having been undertaken.
Although it is not necessary to deal with the further arguments of the respondent, I will do so briefly. Even if Condition 6 was to be understood as referring to separate investigations, I consider that the works undertaken were not part of the development as permitted and authorised. The drilling and sampling work addressed rock and soil conditions, as well as groundwater conditions. The work relating to the former was an essential and substantial part of the work carried out. The consent did not permit the carrying out of unauthorised work as part of authorised work and the carrying out of that work in combination was prohibited.
The remaining argument of the respondent is that a PCA had to be appointed before any work, including the geotechnical work, was undertaken. The consent, by various conditions, and in particular Conditions 20, 21, 22 and 59, assumed the involvement of a PCA in the consideration and approval of reports and activities which would have to occur before or during the demolition stage of the development. Those conditions could not be complied with in the absence of the appointment of a PCA. Although the appellant referred to the limited statutory role of the PCA, it did not argue that any of those conditions, which had been imposed under s 80A, were invalid.
There were no such conditions, however, in relation to the undertaking of geotechnical investigations. Condition 6 says nothing directly about the need for a PCA at the time that that work was to be undertaken. Condition 13 requires only that the final geotechnical report be submitted to a PCA for approval before the issue of the construction certificate. Under s 81A(2)(a), that must occur before the erection of the building commences. The respondent also relies upon Condition 55a as having the consequence that the PCA must be appointed before any work commences. It requires that prior to "commencement of work" the person having the benefit of the Development Consent and a Construction Certificate, appoint a PCA. The latter certificate is issued for the erection of the building and the language of Condition 55a does not provide a sound basis for construing "work" as including work which is not building work. Reference to later conditions, such as Conditions 56, 57 and 58, suggests that "work" may include demolition, as well as building work. However, the terms of those conditions do not suggest that "work" includes any necessary preliminary investigations such as those conducted by the appellant.
The result is that this alternative argument of the respondent should be rejected. To comply with certain of the conditions relating to the demolition, it was necessary to appoint a PCA by the time such work was undertaken. The appellant's failure to do so meant that those conditions were not complied with and provided an additional reason for concluding that the demolition work was prohibited. That failure did not, however, directly have the consequence that the geotechnical work could not be undertaken. That consequence followed indirectly, and from the fact that the demolition work had not been undertaken as required by the consent.
Conclusion
The primary judge was correct to conclude that the geotechnical work did not prevent the consent from lapsing. The appeal should be dismissed and the appellant should pay the respondent's costs of the appeal.
LEEMING JA: I agree with the reasons of Meagher JA and the orders he proposes.
SACKVILLE AJA: I agree with Meagher JA.
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